Abstract
This article starts by examining the appeal to hypothetical consent as used by law and economics writers. I argue that their use of this kind of argument has no moral force whatever. I then briefly examine, through some remarks on Rawls and Scanlon, the conditions under which such an argument would have moral force. Finally, I bring these considerations to bear to criticize the argument of judge Frank Easterbrook's majority opinion in Flamm v. Eberstadt.
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Brudney, D. Hypothetical consent and moral force. Law Philos 10, 235–270 (1991). https://doi.org/10.1007/BF00149798
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DOI: https://doi.org/10.1007/BF00149798